RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

2017-2018
Final DRAFT ON: RELEVANCY OF DYING
DECLARATION

SUBMITTED TO: submitted by:

Mr. Vipul vinod sriya sonkar
Asst.professor section ‘b’
Rmlnlu roll no.148
vth semester

Enrollment no. 150101144

ACKNOWLEDGEMENT

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It feels great pleasure in submitting this project to Mr.Vipul Vinod, Asst. Professor (Law),
Dr. RMLNLU, without whose guidance this project would not have been completed
successfully. Secondly, I would like to express my sincere gratitude towards Prof.
Gurdip Singh, Vice Chancellor and Prof. (Dr.) C. M. Jariwala, Professor, Dean Academics
for their support and encouragement.

Next, I would like to sincerely thank my seniors, whose suggestions and guidance
assisted me throughout the entire tenure of making the project.

Last but not the least, I would like to express my heartfelt gratitude towards my
parents and friends who guided me and helped me at every possible step.

Sriya Sonkar

V Semester

TABLE OF CONTENTS

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  Section 32 of the Indian Evidence act.

 Requirements of Section 32.

 Dying declaration or statement relating to cause of death.

 Dying declaration under clause (1) of Section 32.

 Statement of the accused under Section 162.

 Declaration must be about declarant cause of death.

 Some general propositions.

 FIR as dying declaration.

 Importance of facts and circumstances.

 Evidentiary value of dying declaration.

 Exceptions of dying declaration.

 Conclusion.

 Reference

SECTION 32 OF THE INDIAN EVIDENCE ACT

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S.32. cases in which statements of relevant fact by person who is dead or cannot be found
etc. Is relevant- statement, written or verbal, or relevant facts made by a person who is dead,
or who cannot be found, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense which, under the
circumstances of the case appears to the court unreasonable, are themselves relevant facts.

S.32(1) WHEN IT RELATES TO CAUSE OF DEATH – when the statement is made by a

person as to the cause of his death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.

INTRODUCTION

1. WHAT IS A DYING DECLARATION

A dying declaration is a statement made by a dying person as to the cause of his death or as
to any of the circumstances of the transaction which resulted in his death. Section 32(1) of
the Indian Evidence Act is an exception to the principle that excludes the hearsay rule.
Principle behind the concept of dying declaration is that the person having the first hand
information about a particular matter, however due to death or any kind of disability is
unable to appear before the court, then his/ her knowledge/ information should be transmitted
to the court through some other person . This Section plays a significant role when the person
having a particular knowledge is sought to be proved died or cannot be found or due to any
reason his attendance cannot be procured in the Court. However, proof must be produced
before the Court that why person could not be present to give evidence. Further Supreme
Court of India has held that a dying declaration made by a victim, accusing a person of
having been responsible for his/her death cannot form the basis of conviction if it suffers
from infirmity.

ILLUSTRATION:
The question is, whether A was murdered by B or A dies of injuries received in a transaction
in the course of which she was ravished. The question is, whether A was killed by B under

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such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to cause of his or her death, referring respectively to the murder,
the rape and the actionable wrong under consideration wrong under consideration are
relevant facts.

I. REQUIREMENTS OF SECTION 32

Section 32 is one of those provisions that provide exceptions to the principle of excluding the
hearsay evidence. The principle of the section is that a person who has the first hand
knowledge of the facts of the case, but who, for reasons stated in the section, such as death or
disability, is not able to appear before the court, then his knowledge should be transmitted to
the court through some other person. If he recorded his knowledge somewhere, for example,
on a portrait or register, that record may be produced or if he told his knowledge to another
person that other person may appear to testify of what he was told. The reason for the
exception is obvious. The best evidence is a document or the personal knowledge of a
witness, and if the document has been lost or that witness is unable to appear before the
court, then those who have either seen that document or shared that knowledge of that person
will be considered as the best evidence.

This section comes into play when the person whose statement is sought to be
proved has died, or cannot be found, or has become incapable of giving evidence or whose
attendance can be procured at an amount of delay or expense which under the circumstances
of the case appears to the court to be unreasonable. Proof of these facts will have to be
offered in the first instance to make the evidence relevant. Thus if the ground of relevancy is
the death of the person concerned, his death must be proved, for if he is still alive, he must
appear in person.

II. DYING DECLARATION OR STATEMENTS RELATING TO CAUSE OF

DEATH

Such a statement can be proved when it is made by a person as to the cause of his death, or
as to any of the circumstances of the transaction which resulted in his death. The statement
will be relevant in every case or proceeding in which the cause of that person’s death comes
into question. The clause further goes on to say that such statements are relevant whether the
person who made them was or was not, at the time when they were made, under expectation
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of death, and whatever may be the nature of the proceeding in which the cause of his death
comes into question.

Information lodged by a person who died subsequently relating to the cause of his
death, is admissible in evidence under the clause.

III. DYING DECLARATION UNDE CLAUSE (1) OF SECTION 32,

EVIDENCE ACT
1. ANTICIPATION OF DEATH NOT NECESSARY- one of the most important
departures from English Law that the evidence act marks, is that, it is not necessary
that the declarant should be under any expectation of death. If the declarant has in
fact died and the statement explains the circumstances surrounding his death, the
statement will be relevant even if no cause of death had arisen at the time of the
making of the statement.

IV. STATEMENT OF THE ACCUSED UNDER SECTION 162 OF Crpc-

The statement of the accused to the police that the deceased arrived at his place was
held to be not relevant by virtue of Section 162 of Crpc. This section provides that a
statement made by any person to a police officer in the course of an investigation
cannot be used against him in any enquiry or trail.

V. DECLARATION MUST BE ABOUT DECLARANT’S CAUSE OF DEATH

A declaration of a dying person which explains the cause of death of any other person
than the declarant does not qualify as a dying declaration.

VI. SOME GENERAL PROPOSITIONS: FACTORS IN RELIABILITY:

The court laid down the following general propositions:
1. There is no absolute rule of law that a dying declaration cannot be the sole basis
of conviction unless corroborated. If the declaration is coherent, consistent and
trustworthy and appears to have been made voluntarily, conviction can be based
on it even if there is no corroboration.
2. Each case must go by its own facts.
3. A dying declaration is not a weaker kind of evidence than any other piece of
evidence.

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 4. A dying declaration which has been properly recorded by a competent magistrate,
that is to say, in the form of questions and answers, and, as far as practicable in
the words of the maker of the declaration is reliable. But, it is not necessary to
record the declaration in the form of questions and answers, if it is in terms of the
actual words spoken by the deceased.
5. To test the reliability of a dying declaration, the court has to keep in view the
circumstances like the opportunity of the dying man of observation, for example,
whether there was sufficient light if the crime was committed at night, whether
the capacity of the declarant was no impaired at the time of the statement has
been made at the earliest opportunity and was not the result of tutoring by
interested parties. The statement of the deceased in this case satisfied all these
conditions and therefore, the Supreme Court held that it was rightly acted upon by
the High Court in convincing the appellant.
6. A dying declaration is not necessarily recorded by the magistrate.

VII. FIR AS DYING DECLARATION AND STATEMENTS RECORDED BY

POLICE:
Where an injured person lodged the first information report and then died, it was
held to be relevant as a dying declaration. A declaration noted down by an
assistant sub inspector even before any FIR was lodged was held by the Supreme
Court to be acceptable.

VIII. IMPORTANCE OF FACTS AND CIRCUMSTANCES

The facts that the value of a dying declaration is closely linked with the
circumstances of each case is further supported by the observations of the
Supreme Court1, where SARKARIA. J., said “the substance of the matter was as
to who had stabbed the deceased. When the deponent was in severe bodily pain,
and words were scare, his natural impulse would be to tell the magistrate, without
wasting his breath on details, as to who had stabbed him. The very brevity of the
dying declaration, in the circumstances of the case was an index of its being true
and free from the taint of tutoring.

1
Jayaraj vs. State of T.N.

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 The Apex Court held that, “when a statement is made by a person as to cause of
his death or as to any circumstances of transaction which resulted into his death,
in case in which cause of his death comes in question is admissible in evidence,
such statement in law are compendiously called dying declaration2.”

The Apex Court in its decision held that ‘the principle on which a dying declaration is
admitted in evidence is indicated in latin maxim, nemo morturus procsumitur mentri, a
man will not meet his maker with a lie in his mouth. Information lodged by a person who
died subsequently relating to the cause of his death, is admissible in evidence under this
clause3.”

The Court4 observed pakala ruling & said, ‘applying these to the facts of the case
their Lordships pointed out that the transaction in the case was one in which the
deceased was murdered on 21st March & his body was found in a trunk proved to
be bought on behalf of the accused. The statement made by the deceased on 20th
March that he was setting out to the place where the accused was living, appeared
clearly to be a statement as to some of the circumstances of the transaction which
resulted in his death. Thus the statement was rightly admitted.

In the case of R. v. Jenkins the accused was charged with the murder of a lady.
He attacked her at midnight but she had recognized her because there were
sufficient light to identify him. When magistrate’s clerk asked her about the
accused to record her statement, she told that he was Jenkins who had done the
crime. The clerk asked her that, did she make the statement with no hope of her
recovery then, she replied that she was making that statement with no hope of
recovery. But when the clerk read that statement over to her, before her signing,
she told her to add the word ‘at present’ in that statement.

It was held by the court that the statement was not a dying declaration as her
insistence upon the words “at present” showed that she had some, however faint
hope of recovery.

i. GESTURES AND SIGNS FORM

2
Ulka Ram v. State of Rajasthan. 
3
P.V. Radhakrishna v. State of Karnataka. 
4
Wazir Chand v. State of Haryana. 

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In the case of Queen-Empress v. Abdullah Accused had cut the throat of the deceased girl &
because of that, she was not able to speak so, she indicated the name of the accused by the
signs of her hand, it was held by the full bench of the Allahabad High Court “If the injured
person is unable to speak, he can make dying declaration by signs & gestures in response to
the question.” In another case The Apex Court observed that “the value of the sign language
would depend upon as to who recorded the signs, what gestures & nods were made, what
were the questions asked, whether simple or complicated & how effective & understandable
the nods & gestures were.”

ii. LANGUAGE OF STATEMENT

Where the deceased made the statement in Kannada & Urdu languages, it was held that the
statement could not be discarded on that ground alone, or on the ground that it was recorded
only in Kannada. Where the statement was in Telugu & the doctor recorded it in English but
the precaution of explaining the statement to the injured person by another doctor was taken,
the statement was held to be a valid dying declaration.

iii. ORAL DECLARATION

The Apex Court emphasized the need for corroboration of such declaration particularly in a
case of this kind where the oral statement was made by the injured person to his mother &
she being an interested witness. Such declaration has to be considered with care & caution. A
statement made orally by the person who was struck down with a lathi blow on head and
which was narrated by the witness who lodged the F.I.R. as a part of the F.I.R. was accepted
as a reliable statement for the purpose of Section 32.

iv. THUMB IMPRESSION

A dying declaration authenticated by thumb impression was considered to be doubtful in

view of the fact that the victim had sustained 100 percent burns.

v. INCOMPLETE STATEMENT

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The Apex Court had held that if a deceased fails to complete the main sentence (as for
instance, the genesis or motive for the crime) a dying declaration would be unreliable.
However, if the deceased has narrated the full story, but fails to answer the last formal
question as to what more he wanted to say, the declaration can be relied upon.

vi. WHERE DECLARER SURVIVES

In a case decided by the Apex Court, the deceased who had made the dying declaration was
seriously injured, but was conscious throughout when making the statement. The Court held
that mirror incoherence in his statement with regard to facts & circumstances would not be
sufficient ground for not relying on his statement, which was otherwise found to be genuine.

vii. ABSENCE OF MEDICAL STATEMENT OF FITNESS

Where the dying declaration of a dowry victim was challenged on the ground that doctor’s
certificate of mental fitness for statement was not there, the Supreme Court attached no
importance to that omission, because the case was not wholly dependent upon the
declaration. The facts were on record showing that the injured woman had gone to the
hospital all alone changing vehicles on the way. This was sufficient evidence in itself to
show her fitness.

viii. WHERE INTERESTED WITNESSES WERE ATTTENDING TO THE

DECEASE:

The Gauhati High Court has held that when the interested witnesses were attending on the
deceased when he was making a dying declaration, & because of the injuries, the deceased
was neither physically or mentally fit, no reliance could be placed on the dying declaration,
in the absence of evidence to show that the deceased was physically & mentally capable of
making the dying declaration, & was not the victim of any tutoring.

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 ix. WHERE STATEMENT IS NOT MADE RELEVENT TO THE CAUSE OF
DEATH

When the person making the statement is not proved to have died as a result of the injuries
received in the incident, his statement cannot be said to be the statement as to the cause of his
death or as to any of the circumstances of transaction which resulted in his death.

x. MEDICAL REPORT

The doctor in the hospital clearly recorded in the Accident Register of the Hospital that the
patient was conscious, her orientation was good & that she answered well the question put to
her. Her statement could not be discarded on the basis of her injury or post-mortem report in
which it was said that having regard to the nature of injuries sustained by the deceased, she
could not have been in a position to make a statement. Where the medical report of fitness
was available to the magistrate who was to record the statement, it was held that it was not
necessary for the magistrate to make an independent inquiry as to fitness.

xi. DOCTOR’S STATEMENT

In the case of a bride burning, the doctor to whom the deceased was taken for treatment
deposed that soon after her admission, she said that her husband had poured kerosene on her
clothes and set her ablaze. The doctor made a note of it in the case papers. The testimony of
the doctor became supported by the contemporaneous record. The Court said that the doctor
had no reason to falsely depose against the accused or prepare false case papers.

xii. FIR AS DYING DECLARATION

In K.Ramachand Reddy v. Public Prosecutor, it was held that where an injured person lodged
an FIR & then died, it was held to be relevant as a dying declaration.

xiii. DOWRY DEATH, WIFE BURNING, ETC

The death of a married woman in the matrimonial home three or four months after her
statements expressing the danger to her life has been held by the Apex Court to be a
statement explaining the circumstances of her death. In a case of wife-burning, after
recording her statement that her husband had set afire, she mercifully pleaded that her

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husband should not be beaten. It was argued on this basis that she wanted to exonerate her
husband. The court replied:

This is a sentiment too touching for tears & stems from the values of the culture of the Indian
womanhood; a wife when she has been set afire by her husband, true to her tradition, does
not want her husband should to be assaulted brutally. It is this sentiment which promoted this
dying tragic woman to say that even if she was dying, her husband should not be beaten. We
are unable to appreciate how this statement can be converted into one exculpative of the
accused. In a further application of this principle to a case arising out of  “that atrocious
species of murder “ , called wife burning, the Apex Court said: “The three dying declarations
corroborated by other circumstances are sufficient in our view to bring home the offence.
The counsel has sought to discredit these declarations forgetting that they are groaning
utterances of a dying woman in the grip of dreadful agony which cannot be judged by the
standard of fullness of particulars which witnesses may give in other situations. To discredit
such dying declarations for short- falls here or there or even in many places is unrealistic,
unnatural & unconscionable, if basically there is credibility. The terrible in this case has
taken place in the house & in the presence of the husband who has been convicted. We
hardly see any reason for interfering in this conviction. In a case a bride was 80% burnt when
she had given statement to the doctors. But according to doctors she was in a fit condition to
give statement. The court said that from the fact of 80% burns no inference was to be drawn
that she could not have been capable of making the statement. Where the declaration of the
deceased wife was deposed only by her mother, the Court held this to be not sufficient to
convict.

xiv. STATEMENTS MADE TO OR IMPLICATING RELATIVES

The Apex court laid down in the subsequent case of Barati v. State of U.P., that a dying
declaration made to the relatives of the deceased, when properly proved can also be trusted.
In this case the deceased who was killed by sprinkling acid on him first made the statement
to his brother & son, repeated it at the police station & again at the hospital charging the
accused, the court held that the statement was worthy of credit. Where the dying statement
was recorded by the wife of the deceased, the Supreme Court did not reject it only on that
ground, though it added that such evidence should be scrutinized with care.

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 IX. EVIDENTIARY VALUE OF DYING DECLARATION

The evidentiary value of dying declaration was observed as under:-

“5The dying declaration is undoubtly admissible under section 32 & not being statement on
oath so that its truth could be tested by cross-examination, the court has to apply the scrutiny
& the closest circumspection of the statement before acting upon it. While great solemnity
and sanctity is attached to the words of a dying man because a person on the verge of death is
not likely to tell lies or to connect a case as to implicate an innocent person, yet the court has
to be on guard against the statement of the deceased being a result of either tutoring,
prompting or a product of his imagination. The court must be satisfied that the deceased was
in a fit state of mind to make the statement after the deceased had a clear opportunity to
observe & identify his assailants & that he was making the statement without any influence
or rancour. Once the court is satisfied that the dying declaration is true & voluntary, it can be
sufficient to found the conviction even without further corroboration.”

In another landmark case the Apex Court laid down the following principles related to dying
to dying declaration :

(i) 6There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances in
which the dying declaration was made.

(iv)A dying declaration stands on the same footing as other piece of evidence & has to be

5
K.R. Reddy v. Public Prosecutor.
6
Khushal Rao v. State of Bombay.

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judged in the light of surrounding circumstances & with reference to the principle governing
the weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the proper
manner, that is to say, in the form of questions and answers, &, as far as practicable in the
words of the maker of the declaration stands on a much higher footing than a dying
declaration which depends upon oral testimony which may suffer from all the infirmities of
human memory & human character.

(vi) In order to test the reliability of a dying declaration the court has to keep in view the
circumstances like the opportunity of the dying man for observation, for example, whether
there was sufficient light if the crime was committed in the night; whether the capacity of
man to remember the facts stated had not been impaired at the time he was making the
statement by circumstances beyond his control; that the statement has been consistent
throughout if he had several opportunities of making a dying declaration apart from the
official record of it; & that the statement had been made at the earliest opportunity & was not
the result of tutoring by interested party.”

X. EXCEPTIONS OF DYING DECLARATION

The exceptions of ‘Dying declaration’ stipulate that where the statements made by dying
persons are not admissible:

1. If the cause of death of the deceased is not in question: If the deceased made statement
before his death anything except the cause of his death, that declaration is not admissible in
evidence.

2. If the declarer is not a competent witness: declarer must be competent witness. A dying
declaration of a child is inadmissible. In Amar singh v. State of Madhya Pradesh,1996 Cr LJ
(MP) 1582, it was held by M.P. High Court that without proof of mental or physical fitness,
the dying declaration was not reliable.

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3. Inconsistent declaration: Inconsistent dying declaration is no evidentiary value.

4. Doubtful features: In Ramilaben v. State of Gujarat it was held by the court that second
degree burn injuries, the injured dying 7-8 hours after the incident, four dying declarations
recorded but none carried medical certificate. There were other doubtful features, evidence
not taken into account.

5. Uninfluenced declaration: it must be noted that dying declaration should not be under
influence of any one.

6. Untrue declaration: it is perfectly permissible to reject a part of dying declaration if it is

found to be untrue & if it can be separated.

7. Incomplete declaration: dying declaration must be complete.

8. If the statement relates to the death of another person: If the statement made by the
deceased does not relate to his death, but to the death of another person, it is not relevant.

9. Contradictory statements: if a declarant made more than one dying declarations & all are
contradictory, then those all declarations lose their value.

10. Unsound person: where the married dying of burns was a person of unsound mind & the
medical certificate vouchsafed her physical fitness for a statement & not the state of mind at
the crucial moment, the court said that the statement could not be relied upon.

11. I If dying declaration is not according to prosecution:

1.7 It is for the court to see that dying declaration inspires full confidence as the maker of the
dying declaration is not available for cross-examination.

2. Court should satisfy that there was no possibility of tutoring or prompting.

3. Certificate of doctor should mention that victim was in a fit state of mind. Magistrate
7
U.P. v. Madan Mohan.

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recording his own satisfaction about the fit mental condition of the declarant was not
acceptable especially if the doctor was available.

4. Dying declaration should be recorded by the executive magistrate & police officer to
record the dying declaration only if condition of the deceased was so precarious that no other
alternative was left.

5. Dying declaration may be in the form of questions & answers & answers being written in
the words of the person making the dying declaration. But court cannot be too technical.

LANDMARK DECISION

In the landmark decision of Sudhakar vs. State of M.P the court ruled that:

The situation in which a man is on the deathbed is so solemn and serene, is the reason in law
to accept the veracity of his statement. It is for this reason the requirements of oath and
cross-examination are dispensed with. Since the accused has no power of cross-examination,
the courts insist that the dying declaration should be of such a nature as to inspire full
confidence of the court in its truthfulness and correctness. The court, however, has always to
be on guard to see that the statement of the deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also must further decide that the deceased
was in a fit state of mind and had the opportunity to observe and identify the assailant.
Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks up to the medical opinion.

But where the eyewitnesses state that the deceased was in a fit and conscious state to make
the declaration, the medical opinion will not prevail, nor can it be said that since there is no
certification of the doctor as to the fitness of the mind of the declarant, the dying declaration
is not acceptable. A dying declaration can be oral or in writing and any adequate method of
communication whether by words or by signs or otherwise will suffice provided the
indication is positive and definite. In most cases, however, such statements are made orally
before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a
police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate

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absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if
available for recording the statement of a man about to die.

There is no requirement of law that a dying declaration must necessarily be made to a

Magistrate and when such statement is recorded by a Magistrate there is no specified
statutory form for such recording. Consequently, what evidential value or weight has to be
attached to such statement necessarily depends on the facts and circumstances of each
particular case. What is essentially required is that the person who records a dying
declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved
by the testimony of the Magistrate that the declarant was fit to make the statement even
without examination by the doctor the declaration can be acted upon provided the court
ultimately holds the same to be voluntary and truthful. A certification by the doctor is
essentially a rule of caution and therefore the voluntary and truthful nature of the declaration
can be established otherwise."

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 CONCLUSION

“Dying Declaration” is a legal concept refers to that statement which is made by a dying
person, explaining the circumstances of his death. LORD LUSH, L.J., quoted that “A dying
declaration is admitted in evidence because it is presumed that no person who is immediately
going into the presence of his Maker, will do so with a lie on his lips. But the person making
the declaration must entertain settled hopeless expectation of immediate death. If he thinks
he will die tomorrow it will not do.”

LORD EYRE, C.B., also held that “The principle on which this species of evidence is
admitted is, that they are declarations made in extremity, when the part is at the point of oath,
& when every hope of this world is gone; when every motive of falsehood is silenced, & the
mind is induced by the most powerful consideration to speak the truth; a situation so solemn
& awful is considered by law as creating an obligation equal to that which is imposed by a
positive oath administered in the court of justice.” 

Dying declaration is admissible on the sole ground that it was made in extremis. And in
India, its admissibility is explained in Sec-32(11) of Indian Evidence Act. It is cleared by the
above mentioned statements given by different courts that dying declaration can be in any
form but it must be recorded carefully & duly proved, which the courts make admissible as
the “DYING DECLARATION”. .

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 REFERNCES

1. LAW OF EVIDENCE- AVTAAR SINGH

2. WIKIPEDIA

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